Madden v Department of Natural Resources and Water
[2006] QLC 76
•18 December 2006
LAND COURT OF QUEENSLAND
CITATION: Madden v Department of Natural Resources and Water [2006] QLC 76 PARTIES: William John Madden
(appellant)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO.: AV2005/1218 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against unimproved valuation DELIVERED ON: 18 December 2006 DELIVERED AT: Brisbane HEARD AT: Kingaroy MEMBER Mr BR O'Connor, Judicial Registrar ORDER: The Court has jurisdiction to decide this case.
CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Mr W Madden for the appellant
Mr M Heather, (Acting Principal Lawyer, Legal Services, Department of Natural Resources and Water) for the respondent
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal lodged three days after the due date. Section 57 of the Valuation of Land Act 1944 (VLA) allows for "reasonable excuse" as a cause for such delay.
"57 Late Filing
(1)If a notice of appeal is filed in the Land Court registry after the time stated in section 55(2), the registrar of the court must notify the owner that the appeal may not be heard unless the owner satisfies the court that the owner has a reasonable excuse for filing the notice after the time stated.
Example of reasonable excuse –
The notice of the chief executive’s decision or the notice of appeal was lost or delayed in the ordinary course of post."
The question then is whether the explanation for the late lodgement advanced by the appellant falls within the term "reasonable excuse" as interpreted by the relevant authorities, particularly those since the introduction of s.57 of the VLA as amended in 2000.
The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000. In essence, the authorities establish that the excuse must be "substantial" and "what one is looking for is some cause which a reasonable man would regard as sufficient a case, consistent with a reasonable standard of conduct, the kind of thing which one might have expected to delay the taking of action by a reasonable man".
Background:
Evidence in this case was given by Mr William Madden who is also the appellant and Mr Bruce Gaskell, a departmental valuer. Mr Gaskell's evidence related primarily to proving the issue of a Notice of Decision on Objection made by Mr Madden.
There was a deal of uncertainty and confusion as to the objection and appeal process in the evidence of Mr Madden. However, after reviewing all the written and oral evidence presented in the hearing, I am prepared to accept the following sequence of events as having been established for the purposes of the current decision.
1.Mr Madden lodged a written objection against the departmental valuation of his property on 13 May 2005.
2.The objection was received by the Department on 16 May 2005.
3.The Department decision on objection was issued on 19 July 2005 (Exhibit 2).
4.There is sworn evidence from Mr Madden which is not challenged by the Department that Mr Madden did not receive such notice in the post.
5.Mr Madden suffered a serious eye injury while working on his property in early August 2005. Medical evidence supports this and is not challenged by the Department. Mr Madden's eyesight was significantly affected for some time after this event and he continues to have specialist treatment.
6.The 42 day time limit for lodging an appeal with the Land Court registry expired on 30 August 2005.
7.On 2 September 2005 Mr Madden attended the local Murgon departmental office to lodge an "objection" form as he claimed he had not heard regarding his earlier objection.
8.By letter received on 12 September by Mr Madden, the latter was advised he could now not lodged an objection as a decision had issued on 19 July 2005 on his earlier objection. Appeal Forms (Forms 59) were enclosed for Mr Madden to complete. On 30 September 2005 Mr Madden lodged the completed appeal forms with the Brisbane Land Court registry.
Mr Heather, counsel for the Department is in essential agreement with these facts outlined above.
Decision
If it is accepted that Mr Madden was not in receipt of the written advice that his objection had been disallowed until 12 September 2005, it then becomes a question of whether his subsequent lodging of an appeal with the Court on 30 September is reasonable in all the circumstances.
An appellant is given 42 days from the issue of the objection decision (minus normal mailing delivery times) to lodge an appeal. It is apparent that Mr Madden acted within a considerably shorter period from the time he received the Notice of Disallowance on 12 September 2005 of the appeal until he lodged the appeal with the Court registry. His health was also impacting on his ability to properly function over the relevant periods.
In the rather unusual circumstances of the present case, I am prepared to find that reasonable excuse for late lodgement of the application has been established.
I note that Counsel for the Department, after all the evidence was presented did not argue against such a finding. In this case his role, which he properly conducted, was to ensure, in fairly difficult circumstances, that all the relevant facts were placed before the Court.
Order
The Court has jurisdiction to decide this case.
BR O'CONNOR
JUDICIAL REGISTRAR
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